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Abstract:
During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. This development is significant for the simple reason that advocacy matters, including before the Supreme Court. Better, more effective advocates influence the development of the law and there is generally no court where such advocacy can wield more far-reaching influence than the Supreme Court. And that is precisely what the modern Supreme Court Bar has quietly and increasingly been accomplishing in recent years. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and they also prevail on the merits more frequently. This article documents the extent of the modern Bar's domination of the Court's docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar's primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future.

Supreme Court, Constitutional Law, Legal Profession, Antitrust Law, Tort Law, Criminal Law, Legal History

Abstract:
This article takes the measure of Justice Scalia's ability to produce significant opinions for the Court, by focusing on the Court's property rights cases during the past several decades. Much of the analysis relies on the Official Papers of Justice Harry Blackmun, which provide a virtual treasure trove of information revealing the Court's deliberative process when Blackmun was on the Court from 1971 to 1994. The article concludes that Justice Scalia may have appeared an effective champion of pro-property rights rhetoric to those outside the Court, but he has been much less effective within the Court in furthering that agenda. He not only repeatedly failed in his efforts to build a workable majority coalition on the Court, but he instead pushed away potential allies. The upshot was, in the first instance, precedent heavy on strong rhetoric yet light on staying power. In combination with other causes, the ultimate result was a splintering of those Justices, which included more than a simple majority, intuitively sympathetic to property rights claims and the reconstruction of a new majority more often led by Justice John Paul Stevens that returned the law to where it had been prior to Justice Scalia's joining the Court.

constituitonal law, supreme court, regulatory taking,property,fifth amendment,environmental law,land use,state and local government,natural resources law

Abstract:
This article explores the roles that human nature, the laws of nature, and the nature of the nation's lawmaking institutions have all played in the emergence and evolution of domestic environmental law and how the interrelated difficulties presented by each are reflected in the kinds of legal issues that surround environmental lawmaking. The article also discusses how these same difficulties impede environmental lawmaking by obscuring from lawmakers, judges, and the general population what is truly important about environmental law. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking institutions to develop in the first instance and to maintain over time. Part III takes a closer look at one of the nation's most important legal institutions - the United States Supreme Court - and briefly discusses both its past shortcomings in environmental lawmaking and its potential in the future.

supreme court, environmental law, natural resources,constitutional law, legislation, administrative law

Abstract:
In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades. The article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices. The article's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law. The Justices have instead tended to view environmental protection as merely an incidental factual context for the presentation of legal issues that share no unique environmental dimension. Professor Lazarus posits that this view of environmental law is misguided and that it has resulted in poorer Court decisions. Missing from the Court's analysis has been sufficient emphasis on the nature and normative weightiness of environmental protection concerns and their import both for judicial construction of relevant legal rules and the Court's understanding of the workings of relevant lawmaking institutions. Finally, the article describes how the 'environmental' dimension to environmental law might be restored to the nation's highest Court. This discussion includes a description of how the ecological character of the problem addressed by environmental law affects legal doctrine and lawmaking institutions and how current and future Justices might be made better aware of that relationship.

Abstract:
Climate change may soon have its "lawmaking moment" in the United States. The inherent problem with such lawmaking moments, however, is just that; they are "moments." What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so for environmental law. Subsequent legislative amendments, limited budgets, appropriation riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is especially vulnerable to being unraveled over time for a variety of reasons, but especially because of the extent to which it imposes costs on the short term for the realization of benefits many decades and sometimes centuries later. To be successful over the long term, climate change legislation will need to include institutional design features that insulate programmatic implementation to a significant extent from powerful political and economic interests propelled by short term concerns. Such design features should include a variety of asymmetric precommitment strategies, which deliberately make it hard (never impossible) to change the law in response to some kinds of concerns while simultaneously providing avenues for change in response to other longer term concerns that are in harmony with the law's central purpose to achieve and maintain greenhouse gas emission reductions over time.

environmental law, administrative law, climate change, institutional design

Abstract:
A recurrent issue arising out of the President?s Executive Order 12898 on Environmental Justice is the extent to which EPA possesses the authority to condition on environmental justice grounds permits that the Agency (and States with federally-approved programs) issues to regulated entities pursuant to the various federal environmental protection laws administered by EPA. A related question is the extent to which the permitting authority (state or federal) may deny a permit altogether solely on environmental justice grounds.

This article questions the apparent assumption of many that no such permit conditioning or denial authority exists relating to environmental justice concerns. The article is concerned exclusively with the issue whether EPA possesses authority that it has not yet chosen to exercise. The article does not comprehensively address the distinct question whether EPA is required under existing statutory provisions to impose such conditions or deny such permits. The article concludes that EPA clearly has considerable authority to promote environmental justice through permit conditions and denials (and registration conditions and denials) that the Agency has yet to enlist effectively. More particularly, the article explores EPA's authority to restrict and deny the operation of environmentally risky facilities based on the factor that the community to be exposed is already disparately subject to such risks from other sources as well as the Agency?s authority to condition permits in a manner that requires the regulated entity itself to help the exposed community to build the community enforcement capacity necessary for the community to oversee and ensure the facility's compliance with applicable environmental laws.

Abstract:
In recent years, the formal environmental lawmaking dimension of Congress has become effectively moribund. Earlier Congresses were, by contrast, celebrated for enacting sweeping, demanding environmental laws and for passing significant and increasingly detailed amendments in response to subsequent developments in executive branch agencies, federal courts, and the states. Now, Congress passes almost no coherent, comprehensive environmental legislation and displays no ability to deliberate openly and systematically in response to changing circumstances and new information. Instead, when Congress does now exercise its lawmaking authorities to influence environmental protection policy, it does so primarily through the appropriations process: the sphere of its responsibility that, ironically, has proven to be the least conducive to the kind of deliberative democracy that justifies legislative supremacy in environmental lawmaking. This article describes the ascent and descent of Congress in environmental law, discusses the troublesome implications for environmental law of the increasing dominance of the appropriations process in congressional lawmaking, identifies the major causes of these developments, and concludes by offering some possibilities for congressional reform.

Congress, constitutional law, administrative law, environmental law, natural resources law, legislation, politics, environmental history

Abstract:
Hurricane Katrina's overriding lesson for environmental law is no less than our environmental lawmaking institutions require fundamental reformation. Otherwise, the nation's tragic failure not only to enact laws that anticipate the obvious risks presented to the Gulf Region by hurricanes, but perversely to increase those risks by destroying the ecosystem's natural protections, will inevitably be repeated with even more devastating results.

environmental law, natural resources law, administrative law, land use law, state and local government

Abstract:
This commentary is being published in a forthcoming symposium issue on "The Properties of Carol Rose" by the Yale Journal of Law & the Humanities. It is a commentary on a paper presented by Professor James Salzman Thirst: A Short History of Drinking Water. The commentary addresses three related topics: (1) what I liked best about Professor Salzman's article; (2) how the article's narrow focus on one use (drinking) of one resource (water) undermines some of the article's conclusions by understating water's complexity; and (3) why the article made me think about dirt, and ultimately about mud, and the juxtaposition of water and dirt in natural resources law.

Abstract:
The unprecedented expansion in environmental regulation since 1970 - at all levels of the government - signifies an extraordinary transformation of our nation's law. How environmental law emerged, why it has since evolved in the way that it has, and what are the challenges presented as environmental law moves now into its middle age, is a fascinating and revealing story, which The Making of Environmental Law seeks to tell. The story shows how fashioning pollution control laws presents special challenges both because of the nature of pollution itself and the known means of pollution control and because of our nation's varied processes for lawmaking and the ways those processes relate to important cultural norms. Many of these challenges relate to the varied, complex, and uncertain spatial and temporal dimensions of pollution itself, factors which resist simple redress.

The purpose of the Making of Environmental Law is to describe these challenges, relate them to actual events which occurred during the past three decades, and discuss what lessons can be gleaned from those decades to meet those same challenges today and in the future. The book is, accordingly, divided into three parts. Part I, consisting of three chapters, provides a theoretical overview of the challenges presented by environmental protection for lawmaking. The first two chapters describe the relevant physical features of the natural environment and its transformation by humankind, with emphasis on their spatial and temporal dimensions that especially challenge the fashioning of legal rules. The third chapter analyzes in more detail how these features relate to the structure of U.S. lawmaking institutions in federal, state, and tribal sovereign authorities and within all three branches of government. Part II is more explanatory in nature. It relates the more theoretical analytic framework regarding the nature of environmental lawmaking. Developed in Part I to the actual events surrounding modern environmental law's evolution during the 1960s, 1970, 1980s,and 1990s. Finally Part III is more critical and speculative in character than either Part I or II. The first chapter of Part III considers the current state of environmental law, including both how environmental protection law has evolved during the past three decades and how those evolutionary trends reflect the features of the ecological problems environmental law seeks to address. The second chapter in Part III considers the ways in which environmental law is likely to continue to be challenged in the future, especially by ever-changing conceptions of time and space. The third, and final, chapter of Part III considers the potential historical significance of current times given the unprecedented ascendancy to dominant positions in both the federal legislative and executive branches of government officials who favor major reforms of existing environmental laws.

Environmental law, environmental policy, history, natural resources, government, admininstrative law, political science

Abstract:
This article explores a series of hypotheses regarding environmental law scholarship based on an empirical review. The article examines over a thirty year time horizon such diverse aspects of environmental law scholarship as the sheer amount of scholarship, evolutionary trends in the topics for scholarly inquiry, number of environmental law courses and environmental law professors, proliferation of environmental law journals, relative rates of publication of environmental law scholarship in the nation's most prestigious law reviews, and the identity and relative ranking of those law reviews that published the articles widely viewed as the "best." The article concludes that important lessons about the nature of environmental law scholarship lurk within these numbers. The article offers some of those lessons by making a series of findings and then proffering deliberately provocative, albeit speculative, explanations for them. What commences as a seemingly quantitative undertaking ultimately becomes a more qualitative assessment of legal education and what may be too often missing in current environmental legal scholarship.

Perhaps one of the more surprising (or at least unanticipated) finding is that certain prestigious law review, most notably the Harvard Law Review and until quite recently the University of Chicago Law Review, have historically published significantly fewer environmental law articles than have their peer law reviews or law reviews in general. The paucity of published scholarship stands in sharp contrast to environmental law's remarkable and dramatic emergence during that same time period. The final part of the article proposes a series of explanatory theories for the varied findings, including the Harvard Law Review's remarkably low rate of publication of environmental law scholarship. Interestingly, there is reason to believe that the latter phenomenon reflects the Harvard Law School's implicit signaling to its student body of scholarly value (or the lack thereof) through the law school's curricular offerings and the areas of its own faculty expertise in teaching and scholarship.